2011 (4) TMI 622 - AT - Central Excise

Penalty - Clandestine removal - The main ground of appeal canvassed by the appellant was that when clearances were from one unit to other of the appellant itself, and when cenvat credit of duties paid at one unit was fully available at other unit, the authorities below could not have upheld invocation of extended period of limitation, and therefore, the entire demand as well as the impugned order passed against the appellants is illegal and time barred - Since the assessee is a well established central excise licensee and clearing their finished goods in the open market on payment of duty and under cover of central excise invoices, it cannot be said that they were unaware of the procedure of clearance of dutiable goods - Since they have preferred to clear the goods under the cover of delivery challans, their intention not to pay the requisite central excise duty is forthcoming - Therefore, the removal of goods in the instant case by the assessee merely on delivery challan without payment of central excise duty using their own discretion proves their malafide intention for avoiding the payment of central excise duty - As regards penalty Commissioner (Appeals) in his order reduced the penalty to 25% of the total duty confirmed. He has considered the payment of duty prior to issue of show cause notice - The appeal is accordingly disposed of.

Summary

Issues:
Illicit clearance and non-accounting of Soya Fatty Acid, non-payment/reversal of cenvat credit, invocation of extended period of limitation, legality of demands, personal penalties, issuance of central excise invoices, Rule 11 compliance, intention to avoid central excise duty, revenue neutralization, applicability of legal judgments/orders, penalty imposition.

Detailed Analysis:

1. Illicit Clearance and Non-Accounting: The case involved M/s. Nabors Pharma Pvt. Ltd. engaging in illicit clearance and non-accounting of Soya Fatty Acid, an emerged product during the manufacture of bulk drugs. The Revenue detected these activities, leading to demands for unpaid duty, penalties, and interest.

2. Invocation of Extended Period of Limitation: The main ground of appeal was that clearances between the appellant's units should not have invoked the extended period of limitation. The appellant argued that duties paid at one unit would be fully available as cenvat credit at the other unit, making the demand illegal and time-barred.

3. Issuance of Central Excise Invoices: The appellant failed to issue valid central excise invoices for clearances between their units, which is a violation of Rule 11 of the Central Excise Rules, 2002. This non-compliance hindered the availment of cenvat credit at Unit-I for goods received from Unit-II.

4. Intention to Avoid Central Excise Duty: The original adjudicating authority found that the appellant's actions indicated an intention to avoid paying central excise duty. The appellant's use of delivery challans instead of central excise invoices demonstrated a deliberate attempt to circumvent duty payment obligations.

5. Applicability of Legal Judgments/Orders: The appellant's argument regarding revenue neutralization was deemed an afterthought and not acceptable. The cited legal judgments/orders were found inapplicable due to non-identical facts. The Tribunal agreed with the original adjudicating authority's findings on other points of contention.

6. Penalty Imposition: The Commissioner (Appeals) reduced the penalty to 25% of the total duty confirmed, considering the payment of duty before the show cause notice. The Tribunal upheld this decision, leading to the disposal of the appeal in favor of the Revenue.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Ahmedabad upheld the demands and penalties imposed on M/s. Nabors Pharma Pvt. Ltd. for illicit clearances, non-accounting, and non-compliance with central excise rules. The decision highlighted the importance of following proper procedures, issuing valid invoices, and paying central excise duty to safeguard revenue and prevent malafide intentions in tax matters.